Cochrel v. Robinson

• Decision Date: 24 November 1925
• Docket Number: 18994
• Parties: Cochrel, A Minor, v. Robinson Et Al.
• Court: Ohio Supreme Court

149 N.E. 871

113 Ohio St. 526

Cochrel, A Minor, v. Robinson Et Al.

No. 18994

Supreme Court of Ohio

November 24, 1925

Descent and distribution - Heir at law designated - Section 8598 General Code - Rights same as child born in lawful wedlock - Designated heir regarded as "issue" - Descent of estates by purchase - Section 5574, General Code - Kindred of deceased intestate spouse do not take, when - Section 5577 General Code - Statutory construction - Intention of legislature determined, how - Construction adopted to effectuate paramount object to be attained.

1. Section 8598, General Code, authorizing the designation of an heir creates rights of inheritance under the statute of descent and distribution of intestate estates, and such designated heir becomes entitled to the same right of property as if he were a child born in lawful wedlock.

2. Such person so designated is to be regarded the same as "issue" of the person so designating, in so far as it involves his right to inherit from the person so designating under the statutes of descent and distribution.

3. Where a person acquires title to real estate under Section 8574, General Code, and having designated an heir, as authorized by Section 8598, General Code, afterwards

________________

Adoption of Children, 1 C. J. § 128;

Id.;

Id.;

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dies intestate, seized of said property, the person so designated as heir inherits under the statutes of descent as "if a child born in lawful wedlock" and the person so designating an heir cannot be said to have died "without issue," within the purview of Section 8577, General Code, providing for inheritance by kindred of a deceased husband or wife of the intestate dying without issue.

4. In the construction of a statute the primary duty of the court is to give effect to the intention of the Legislature enacting it. Such intention is to be sought in the language employed and the apparent purpose to be subserved, and such a construction adopted which permits the statute and its various parts to be construed as a whole and give effect to the paramount object to be attained.

This is a proceeding in error to the Court of Appeals of Putnam county. The facts incident thereto, as disclosed by the record, are as follows:

James M. Robinson died on the 27th day of October, 1911, seized in fee simple of a lot in the village of Belmore, Putnam county the same being referred to in this record as tract No. 1. He was also seized at the date of his death of an undivided one-half interest in 140 acres of land in Putnam county, the remaining undivided one-half interest being owned by his widow Isabelle Robinson. This tract of 140 acres of land is referred to in this record as tract No. 2. Said James M Robinson died intestate, leaving no children, nor ________________

Statutes, 36 Cyc. pp. 1106, 1111, 1128. ________________ issue, nor designated heir, surviving him. The widow, Isabelle Robinson, relict of James M. Robinson, never remarrying, survived him over 12 years, dying intestate on the 8th day of April, 1924.

Eight years prior to her death, on the 7th day of September, 1916, Isabelle Robinson went before the probate judge of Putnam county, and duly appointed and designated, under and by virtue of the provisions of Section 8598, General Code, the plaintiff in error, James McKee Robinson Leroy Cochrel, hereinafter referred to as Leroy Cochrel (who is represented in this suit by his mother, Carrie Cochrel, his duly appointed guardian), to stand toward her, the said Isabelle Robin son, in the event of her death, in the relation of son and heir at law, and the said Leroy Cochrel, under and by virtue of he order of the probate judge, was duly and legally designated and declared to so stand in relation toward the said Isabelle Robinson for all purposes the same as if he had been a child born to her in lawful wedlock.

Upon the date of the death of Isabelle Robinson, to wit, April 8, 1924, she was seized in fee simple of all the real estate owned by her husband at his decease; the same having passed to her under and by virtue of Section 8574, General Code, title to the property having been in her husband by purchase and not by devise, descent, or deed of gift. During her husband's lifetime, she was the owner of the remaining undivided one-half interest in tract No. 2, and upon his death she became the owner in fee simple of both tract No. 1 and tract No. 2, and died seized thereof.

Upon the death of said Isabelle Robinson, the defendant in error J. J. Robinson, a soon of a deceased brother of James M. Robinson, husband of Isabelle Robinson, began a proceeding in partition in the common pleas court of Putnam county, claiming for himself and the legal representatives of the deceased brothers and sisters of the said James M. Robinson, and the brothers and sisters and their legal representatives of the said Isabelle Robinson, all the lands left by the said James M. Robinson at his death, and which had passed to the said Isabelle Robinson as his widow and were still held by her at the time of her death.

An answer to this petition was filed by Carrie Cochrel, guardian of Leroy Cochrel, claiming ownership for him in all of said lands as the designated heir of Isabelle Robinson, deceased, under and by virtue of Section 8598, General Code, and the proceedings of the probate court of Putnam county thereunder. The guardian prayed for a dismissal of the petition and asked that the title of the lands described therein be quieted in her ward, Leroy Cochrel.

A reply was filed in the nature of a general denial, and upon the issues as thus made the common pleas court gave to Leroy Cochrel an undivided half of tract No. 1, and to the legal representatives of the deceased brothers and sisters of James M. Robinson the remaining undivided one-half of tract No. I. As to tract No. 2, the common pleas court held that the said Leroy Cochrel was entitled to three-fourths of the tract and the legal representatives of the deceased brothers and sisters of James M. Robinson were entitled to the remaining one-fourth.

A finding of facts was made by the court of common pleas at the request of counsel upon both sides, which is conceded to be correct. A separate statement of conclusions of law was prepared, from which error was prosecuted to the Court of Appeals on behalf of the plaintiff in error here.

Upon hearing, the Court of Appeals reached the Conclusion that an undivided one-half of tract No. 1 should go to the brothers and sisters of James M. Robinson, or their legal representatives, and the remaining undivided one-half thereof should go to the brothers and sisters of Isabelle Robinson, or their legal representatives. As to tract No. 2 the Court of Appeals found that an undivided one- fourth thereof should go to the brothers and sisters of James if Robinson, or their legal representatives, an undivided one-fourth thereof to the brothers and sisters of Isabelle Robinson, or their legal representatives, and an undivided one-half thereof to Leroy Cochrel.

To this judgment error is now prosecuted to this court on behalf of the minor Leroy Cochrel.

Mr. Newton R. Harrington and Mr. Frank A. Harrington, for plaintiff in error.

Mr. A. A. Slayhaugh and Mr. Ernest M. Botkin, for defendants in error.

DAY, J.

The paramount questions in this case are: First, what construction shall be given the word "issue" in Section 8577, General Code, as amended by 110 Ohio Laws, p 15, when considered in connection with the designation of heir statute, Section 8598, General Code? Second, what effect, if any, should be given that portion of tile latter section which provides that "the rules of inheritance will be the same, between him and the relations by blood of the declarant, as if so born?"

The two sections involved, in so far as they are material, are as follows:

Section 8598: "A person of sound mind and memory may appear before the probate judge of his county, file a written declaration, * * * declaring that, as his or her free and voluntary at, he or she did designate and appoint another, flaming and stating `the place of residence of such person specifically, to stand toward him in the relation of an heir-at-law in the event of his or her death. * * * The judge thereupon shall enter that fact upon his journal, and make a complete record of such proceedings. Thenceforward the person thus designated will stand in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock. The rules of inheritance will be the same, between him and the relations by blood of the declarant, as if so born."

Section 8577. "When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate which came to such intestate from a former deceased husband or wife by deed of gift, devise or bequest, or under the provisions of Section eighty-five hundred seventy-four, then such estate * * * shall pass to and vest in the children of such deceased husband * * * or the legal representatives of such children. If there are no children or their legal representatives living, then such estate * * * shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such estate came, or their legal representatives."

The rule of construction relative to whether the terms "child" or "children," or "issue," in statutes governing the distribution of decedent's estates, include adopted children (designated heirs may be so regarded), is well stated in Ross v. Ross 129 Mass. 243, 266, 37 Am. 321, and 30 L.R.A., (N. S.), 914, where the authorities are collected, as...